2016 First Amendment Gerrymander Standard Writing Competition


In December of 2015, the U.S. Supreme Court issued a unanimous ruling in Shapiro v. McManus allowing a First Amendment challenge to Maryland’s congressional districts to move forward. This year, a three-judge federal district court panel heard Whitford v. Nichol, a case challenging Wisconsin’s state legislative Assembly districts. These cases challenging partisan gerrymanders have potentially significant consequences for fair democratic representation. Either could open the door to a ruling against political gerrymandering that leads to its demise.

The Supreme Court has long suggested there is a limit for what is acceptable partisan gerrymandering, but like obscenity, so far the line is undefined and left to courts to know it when they see it. The Court has said that it is willing to hear constitutional challenges to partisan gerrymandering, but existing legal theories have been insufficient to empower citizens and advocates with the tools they need to overturn partisan gerrymanders in court.

For the second year, we invited legal and social science practitioners, scholars, and students to submit papers that identify partisan gerrymanders and distinguish them from districts drawn using neutral redistricting principles while developing legal theories or arguments that could be used by courts to declare partisan gerrymanders unconstitutional. This year, we asked authors to focus specifically on the First Amendment issue in Shapiro and Whitford to demonstrate why the drawing of Maryland’s congressional districts or Wisconsin’s Assembly districts is a partisan gerrymander that should be condemned under the First Amendment. Winning papers were selected by a distinguished panel of democracy scholars.

2016 Winners

The final versions of each winning paper will be published in Election Law Journal and available to the public later this year.

1st place – Wendy Tam Cho and Yan Y. Liu, University of Illinois

Toward a Talismanic Redistricting Tool: A Fully Balanced Computational Method for Identifying Extreme Redistricting Plans

Abstract: We develop a scalable evolutionary computation model that utilizes massively parallel high performance computing for analyzing political gerrymandering at fine levels of granularity. The computational efficiency of our approach enables us to generate millions of redistricting maps with desirable characteristics, allowing us to understand redistricting in fundamentally new ways. The generated maps provide context and insight into the role of partisanship in devising the disputed plan. Our model integrates the recent unmistakable and enormous proliferation in computing power with our articulated theories for redistricting and democratic rule to empower citizens with new abilities to understand and overturn partisan gerrymanders.

2nd place – Samuel Wang, Princeton University

Three Practical Tests for Gerrymandering: Application to Maryland and Wisconsin

Abstract: The Supreme Court has held that partisan gerrymandering is recognizable by its asymmetry: for a given distribution of popular votes, if the parties switch places in popular vote, the numbers of seats will change in an unequal fashion. However, the asymmetry standard is only a broad statement of principle, and no analytical method for assessing asymmetry has yet been held to be manageable. Recently I have proposed three statistical tests to reliably assess asymmetry in state-level districting schemes: (a) unrepresentative distortion in the number of seats won based on expectations from nationwide district characteristics; (b) a discrepancy in winning vote margins between the two parties; and (c) the construction of reliable wins for the party in charge of redistricting, as measured by either the difference between mean and median vote share, or an unusually even distribution of votes across districts. The first test relies on computer simulation to estimate appropriate levels of representation for a given level of popular vote, and provides a way to measure the effects of a gerrymander. The second and third tests, which can identify evidence for intent, rely on well-established statistical principles and can be carried out using a hand calculator without examination of maps or redistricting procedures.

These tests allow calculation of the exact probability that an outcome would have arisen by chance. Here I use these tests to show that both Maryland’s Congressional districts (Shapiro v. McManus) and Wisconsin's state Assembly districts (Whitford v. Nichol) meet criteria for a partisan gerrymander. I propose that an intents-and-effects standard based on these tests is robust enough to mitigate the need to demonstrate predominant partisan intent. The three statistical standards offered here add to the judge’s toolkit for rapidly and rigorously identifying the consequences of partisan redistricting.

3rd place – Theodore Arrington, University of North Carolina – Charlotte (emeritus)

A Practical Procedure for Detecting a Partisan Gerrymander

Abstract: This article presents a workable criteria for determining when districting arrangements so distort the process of translating votes into seats in a legislature that the process or the redistricting plan rises to a constitutional violation. The procedure uses an adjusted normal partisan vote measure (ANPV) to determine the number of seats that the preferred party would receive when the vote is equally divided between the parties and how that distribution of seats would change as the ANPV is adjusted up or down. This procedure would show that a gerrymander is long lasting, severe, and intentional.

2016 Judges Panel

Guy-Uriel Charles – Senior Associate Dean for Faculty & Research; Charles S. Rhyne Professor of Law; and founding director of the Duke Law Center on Law, Race and Politics at Duke Law School

Erwin Chemerinsky – Dean, Distinguished Professor of Law, and Raymond Pryke Professor of First Amendment Law at UC Irvine Law School

Allison Hayward – Board member of the Office of Congressional Ethics; former Vice President of Policy at the Center for Competitive Politics and counsel to FEC Commissioner Bradley Smith

Michael Li – Democracy Program Senior Counsel, Brennan Center for Justice

Derek Muller – Associate Professor, Pepperdine University School of Law

Information on our 2015 contest, including links to winning papers, is available here.

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